Electronic commerce : some key legal aspects

Abstract

The most difficult task when writing a legal texi is deciding what to leave out. This difficulty is compounded at least a hundred-fold when the subject of the book is Internet law. This thesis does not purport to exhaust the whole realm of electronic commerce. Neither does it seek to provide a definitive analysis of all the complex legal issues involved. Rather, the main aim is to examine in some detail the various challenges posed by ecommerce in certain key areas oflaw and to consider possible solutions thereto. The first two chapters are dedicated to the online contract, undoubtedly the most important instrument in any legal relationship. The first chapter starts out by considering the challenges posed by the electronic nature of such contracts to traditional legal principles of form and substance. The second chapter focuses on the moment of conclusion of such contracts and the conflict of laws problems that are necessarily compounded on the Internet as a result of the irrelevance of geographic boundaries therein. The third chapter follows from the above by turning the spotlight onto the legal protection envisaged for the consumer in online contracts to which he is a party. Liability issues facing online intermediaries are examined in the fourth chapter. This chapter starts off by identifying the said intermediaries and then proceeds to examine liability problems that they may potentially face with regard to copyright and defamation. It will be submitted that in spite of legal provisions seeking to lay such problems to rest, a number of issues remain unresolved. The fifth chapter finally concentrates on the fiscal aspect of e-commerce. In this chapter more issues are raised than questions answered. The arguments developed therein seek to provoke debate both with regard to direct as well as indirect tax issues. All these chapters are written primarily from a Maltese law perspective, with arguments being made in the light of both general civil and commercial law as well as within the more specificparameters of the recently-enacted Electronic Commerce Act. Given however that within the e-commerce context, where globalisation is the keyword, an isolationist approachwould be very inappropriate, the above-mentioned arguments are discussed against the backdrop of foreign legal developments both on a national as well as on an international and European level.